Genocide Count Reinstated in Case Against Karadzic

Rachel Irwin

Senior Reporter

Friday, 12 July, 2013

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The first count of genocide in the indictment against wartime Bosnian Serb president Radovan Karadzic was reinstated this week when appeals judges in The Hague overturned a decision to acquit him on a charge that relates to seven municipalities in Bosnia.

When that charge was dropped on June 28, 2012, a separate count of genocide for the 1995 massacre of over 7,000 men and boys at Srebrenica remained intact. It still stands, along with counts of persecution, extermination, murder, deportation, inhumane acts, terror, and unlawful attacks.

Last year’s acquittal was for the accusation that Karadzic was responsible for genocide in seven other municipalities between March 31 and December 31, 1992. 

The 2012 decision was the result of a process known as “98 bis”, which occurs at the conclusion of the prosecution’s case. According to this rule, if there is no evidence capable of supporting a conviction, judges can acquit a defendant of one or more counts in the indictment before the defence case begins.

Karadzic began presenting his defence case in October 2012, and it is ongoing.

The prosecution appealed against the 98 bis acquittal on the genocide count, and a hearing on the matter was held in April. 

Presiding judge and tribunal president Theodor Meron read out the appeal verdict reinstating the genocide count in open court on July 11.

Judge Meron stated that “no reasonable trial chamber reviewing the specific evidence on the record in this case, including evidence of sexual violence and of beatings causing serious physical injuries, could have concluded that it was insufficient to establish the actus reus [act] of genocide in the context of Rule 98 bis.”

The judge noted that evidence existed indicating that Bosnian Muslim and Croat prisoners in Bosnian Serb-run detention facilities “were kicked and violently beaten with a range of objects” for “extended periods of time”. In some instances, detainees were “thrown down flights of stairs, beaten until they lost consciousness, or had their heads hit against walls.”

In addition, the judge said, the evidence indicated that hundreds of prisoners were held in small, overcrowded rooms, they were not given enough food, they were sometimes deprived of water, and they “were not given access to proper toilet or bathing facilities, leading to the spread of disease”.

“The appeals chamber is satisfied that evidence adduced by the prosecution, when taken at its highest, indicates that Bosnian Muslims and Bosnian Croats were subjected to conditions of life that would bring about their physical destruction,” Judge Meron said.

The trial chamber’s error on this point therefore resulted in a “miscarriage of justice”, he said.

The appeals chamber also looked at the question of intent to commit genocide, noting evidence presented during the prosecution case that at meetings attended by Karadzic, “it had been decided that one third of Muslims would be killed, one third would be converted to the Orthodox religion and a third will leave on their own”.

Judge Meron said that when presented with this example at the April appeal hearing, Karadzic’s legal advisor Peter Robinson “accepted that, taken at its highest, this statement could constitute evidence of genocidal intent”.

The judge pointed to other statements which he said suggested that Karadzic had genocidal intent, including one in which he allegedly said that his goal was “to get rid of the enemies in our house – Croats and Muslims – and not to be in the same state with them”.

Judge Meron noted that under the Rule 98 bis procedure, “the prosecution’s evidence is assumed to be credible and is taken at its highest, and that a judgement of acquittal shall be entered only if there is ‘no evidence capable of supporting a conviction’”.

“In the context of this appeal,” he continued, “the appeals chamber considers that the evidence on the record, taken at its highest, could indicate that Karadzic possessed genocidal intent. Other evidence on the record indicates that other alleged members of the [joint criminal enterprise] also possessed such intent”.

The judge then addressed some of the arguments put forward by Karadzic’s, including one stating that the trial chamber was right to conclude that there was no “confluence” between the acts he was charged with and his actual intent, and that “the killings and serious harm in the municipalities were not done with the intent to destroy the Bosnian Muslims as a group”.

Karadzic argued that the appeals chamber should not reverse the genocide acquittal even if it found that the trial chamber had erred, because this would “disrupt the ongoing trial on the remaining counts of the indictment and would represent an irresponsible use of public funds”. Judge Meron said that “no exceptional circumstances exist” to uphold the acquittal on those grounds.

He said that the appeals chamber found all of Karadzic’s contentions “unconvincing”.
In the complete 47-page judgement, the appeals bench says that it reversed the trial chamber’s findings “with respect to genocidal intent, serious bodily or mental harm, and conditions of life calculated to destroy”. It would therefore be “premature” to consider the “confluence between genocidal intent and the alleged genocidal acts.”

The matter is now back in the hands of the trial chamber, which will make its judgement on all counts in the indictment at the conclusion of the trial.

Karadzic was arrested in Belgrade in 2008 after 13 years on the run. His trial officially started in October 2009, but witness testimony did not get under way until April 2010.

Rachel Irwin is IWPR’s Senior Reporter in The Hague.